Saturday, June 27, 2009

Empathy and Judges

Thomas Jefferson wrote the Declaration of Independence in the 1770s declaring that "All men are created equal." That document serves as the foundation upon which the United States was created and that phrase still stands as the single proclamation and premise that binds our nation together, not to mention the hopes and dreams of those throughout the world who hear those words, but do not have the benefit of experiencing its impact in their own cultures, religions or forms of government. In our country we are moving toward a watershed moment as Congress takes up the qualifications of Judge Sottomayer to be the next U.S. Supreme Court justice.

We hear the word empathy bantered about as though the presence or absence of this characteristic somehow defines the ability or inability of Judge Sottomayer to perform the duties of a judge of the highest court of the land. At the time of the writing of the Declaration of Independence, Jefferson owned several hundred slaves. A ten year old child reading that document could only conclude that black men would be encompassed within its meaning. Not so, however. The interpretation at the time by Jefferson and others was that "all men" meant only white men; No blacks, no women. A civil war was fought almost one hundred years later to establish that black men had the right to participate in our democracy. Women, white and black, were finally included as participants in this American ideal in the early 1910s by being granted the right to vote. Sixty years later, the rights of blacks in our society were finally and firmly established in the Civil Rights Act, the validity of which has been upheld by the Supreme Court on numerous occasions. Let me ask whether or not the Justices voting on these issues of the constitutionality of black folks or women of all races enjoying the same rights and privileges as white men invoked the quality of empathy in arriving at their decisions? Or whether it required empathy, in obvious contradiction to Jefferson's proclamation about "all men," to include women in our participatory process of democracy? The answers to these questions are simple; Of course it did.

I submit that empathy is a quality in a person of judgment, including our judges, that is an essential requirement. To lock into the language of law and phrases without breathing life into them in considering modern circumstances implies that the village idiot could be the ultimate arbiter of issues in our complex society. Some of the recent decisions suggest that we may have several of these village idiots already on the Court. They want to go back in time to a different era using the language of our U.S. Constitution as a fixed in time piece of work that can go no further in advancing the causes or true meaning of liberty. The current nominee, Judge Sottomayer, will be a welcome addition to the Court because she does have the essential qualities, including empathy, to advance the course of our nation.